COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM The Lands Tribunal
London, WC2A 2LL
B e f o r e :
LORD JUSTICE POTTER
LORD JUSTICE CARNWATH
| ROBERTS AND ANOTHER||Appellants|
|- and -|
|SOUTH GLOUCESTERSHIRE COUNCIL||Respondents|
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Ms Frances Patterson QC and Mr Robert Palmer (instructed by Mr Michael Hewitt, Solicitor, South Gloucestershire Council) for the Respondents.
AS APPROVED BY THE COURT
Crown Copyright ©
Lord Justice Carnwath :
“The construction of the ring road, where passing through the subject land, required the extraction of approximately 56,114 cu.m. (123,450 tonnes) of materials which included topsoil and a mixture of clay, weak weathered silt sandstone and thinly bedded laminated sandstone to a depth of about 4 metres, and Pennant sandstone to a total depth of 8.46 metres. This provided a cutting over which a new overbridge would be built on the line of, and at the existing level of, Abbots Road. To facilitate the construction of the bridge, and to allow Abbots Road to continue to be used, a temporary diversion (or land-bridge) was constructed on the subject land utilising an estimated 10 per cent of the materials extracted from the claimants’ land. The balance of the excavated materials were removed and used partly for landscaping and the formation of a sound-bund elsewhere on the scheme, or tipped.”
“(1) In a case where –
(a) the relevant interest is to be acquired for purposes which involve the carrying out the proposals of the acquiring authority for development to the relevant land or part thereof, and
(b) on the date of service of the notice to treat there is not in force planning permission for development,
it shall be assumed that planning permission would be granted, in respect of the relevant land or that part thereof, as the case may be, such as would permit development thereof in accordance with proposals of the acquiring authority.
(2) For the purposes of paragraph (b) of the preceding sub-section, no account shall be taken of any planning permission so granted as not to enure (while the permission remains in force) for the benefit of the land and of all persons for the time being interested therein.”
Section 15 (5) provides that permission is to be assumed in accordance with a certificate granted under section 17. (A contrary indication in the decision on the section 17 application is not conclusive against the claimant, although regard must be had to it in deciding, where relevant, what permission might reasonably have been expected to have been granted: see s.14(3A). That issue does not arise in this case.)
“It comes to this. In valuing the estate, you are to disregard the effect of the scheme, but you are to assume the availability of planning permission. This is best explained by taking an imaginary instance: A scheme is proposed for building a motorway across Dartmoor with a service station every five miles. Suppose that land is taken on which a service station is to be built as soon as possible. In assessing compensation, you are to disregard any increase due to the proposed motorway, or service stations. But if the landowner had already been granted actual permission for that piece of land for commercial purposes (for example, as a café), you are to have regard to it: see section 14 (2). Even if he had no such permission already, you are to assume that he would have been granted planning permission for a service station; see section 15 (1). And you are to value that land with that permission in the setting in which it would have been if there had been no scheme. If it would have been a good site for a service station, there would be a great increase in value. If it would have been in an inaccessible spot on the wild moor, there would be little, if any, increase in value because there would be no demand for it. A further complication arises when the proposals are not put into effect for 10 years. Planning permissions are not in practice granted so far ahead. They are only granted for immediate development. In the illustration you are therefore to assume that, after 10 years, planning permission would be granted for development of a service station – in a setting where there had been no scheme.”
“1. Mineral extraction on the scale required in this case is ‘development’ for the purpose of the Town and Country Planning Act 1990, being a mineral operation, and not merely ancillary to other engineering operations (see West Bowers Farm Products –v- Essex County Council (1985) 50 P&CR 368);
2. As this development formed part of the authority’s proposals and part of the overall development for which the land was required, planning permission is assumed to exist for it under section 15 (1) or (5);
3. Therefore it is lawful to excavate the minerals in this case.
4. There is no condition on the assumed permission requiring the mineral excavator to build the road pursuant to the permission or to retain any part of the minerals excavated for any specific purpose;
5. Therefore it is lawful for the mineral excavator to excavate and remove the minerals, and leave the construction of the road under the actual permission to another;
6. If a road builder cannot be found, it does not render the excavation unlawful because it is permitted by the assumed permission.”
“Will the construction of the reservoir be (1) solely the carrying out of engineering operations requisite for the use of the land for the purposes of agriculture, or (2) a hybrid consisting partly of that activity and partly of the use of the land for the winning or working of minerals?” (p 372-3)
The Court of Appeal held that, having regard to the nature and scale of the mineral extraction involved in the development, it was to be regarded as, not solely an engineering operation, but a combination of an engineering operation and mineral operations.
“Mr. Konrad Schiemann, QC, who has appeared for the developers, has submitted that, if this is right, every engineering operation that incidentally involves the extraction of minerals from the land will also constitute a mining operation and the scope of Class VI of the Order of 1977 will be greatly reduced. In his submission, the test is the purpose for which the activity is undertaken. If minerals are removed for the purpose of facilitating an engineering operation, the development is to be classified as such an operation and not as a mining operation. I am unable to accept this argument. Purpose is undoubtedly a factor to be taken into account. Scale, however, is also relevant, as is what happens to the extracted materials. Thus, the digging of foundations for a building, which incidentally involves the extraction of relatively small quantities of minerals, could not possibly be described as a mining operation. Nor could most ‘cut and fill’ operations involved in road building. It is a question of fact and degree in each case.
Looking at the facts of this case, which involves the removal of so large a quantity of minerals, the only possible conclusion is that the development would consist of a mining operation followed by an engineering operation.” (p 378)
“50. West Bowers involved deciding whether a particular operation fell into one or both of two specific categories of operation. On the facts the Court of Appeal held that it fell into both. There is no difficulty in following the logic of this conclusion. The facts were such that an objective onlooker when asked what the operation involved might have said ‘digging a reservoir’ or ‘recovering gravel’ or both. The operation had two physical aspects the one the corollary of the other; a hole was dug; gravel was removed. Each aspect fell into a different planning category.
51. West Bowers recognised that one indivisible process could amount, for planning purposes, to two activities. It does not follow that the different aspects of a process always fall to be categorised as different operations or uses of land for planning purposes. Lord Kingsland did not suggest that disposing of petcoke was a distinct use of the land at Thrislington, although petcoke is a by-product of the oil industry that has all the features of waste, save that its qualities as a source of energy have become appreciated so that it is universally burnt for energy recovery. Lord Kingsland’s contention that disposing of waste is always a separate land use, regardless of the nature or manner of disposal, cannot be derived from West Bowers”.
He referred with approval to Sir John Donaldson’s observation, in West Bowers (see above), that the manner in which the introduction of waste onto land falls to be categorised for planning purposes depends upon the object of the activity, and mentioned Northavon, as “instructive” on the point.
“In the West Bowers case there were two separate activities, separated both in time and in their nature. At Thrislington….. there is no separation in time between the burning of SLF and the use of heat in the production process.”
The Master of the Rolls commented:
“67. In speaking of the activities being separated in time in West Bowers, Mr Fitzgerald was echoing a comment of Sir John Donaldson M.R. in that case. Sir John had drawn a distinction between the removal of the (gravel) and subsequent making watertight of the reservoir. I do not consider that it is correct to analyse West Bowers as involving two separate and sequential activities. The operation of removing gravel was simultaneous with the operation of creating the reservoir. Nourse L.J. correctly accepted the premise that there was one indivisible process. The true basis for distinguishing West Bowers is that in that case to the express terms of the planning regulations so that each had to be separately considered (sic). There is no requirement to give consideration separately to the operation of adding SLF to the fuel used to apply heat in the course of the lime making process.”
This part of the Master of the Rolls’ judgment was expressly approved by Pill LJ (para 99 – the reference there, I think, must be to paragraph 67, rather than 66). It is significant also that Sir Martin Nourse, who had given the leading judgment in the West Bowers case, agreed with both judgments.
“One final point. Logic and common sense determine that the claimant’s case should fail. … (The claimant’s) case weighed heavily upon assumption upon assumption that I consider to manifestly unsustainable, and it appears to me, that notwithstanding the planning arguments, the realities of the situation have been substantially ignored.”
I understand him there to have been expressing what Peter Gibson LJ referred to, in a similar context in the rating field, as “the principle of reality” (see Hoare (VO) –v- National Trust  RA 391, 415), or as Lawton LJ put it in a case under the Land Compensation Act 1961:-
“It is important that this statutory world of make-believe should be kept as near as possible to reality” (Trocette Property Co Ltd –v- GLC [1974 RVR 306, 311).
The planning assumptions in the 1961 Act are intended to facilitate the task at arriving at fair compensation. With or without permission for a road, the claimant had no expectation in the real world of realising the value of his minerals in the foreseeable future, for the reasons set out in the decision on the section 17 application, and there is no reason for him to be compensated for its loss.
“Knowing that, in the no-scheme world, there would be no point in constructing a 204m section of road that would not connect with any road to the North or South, the mineral operator would be aware that there would be no market for the land for a road construction company.” (para 27)
“For my part, and in the absence of authority, I would have had no hesitation in saying that in a case of this kind where there is to be new development on land previously undeveloped one ought, subject to any special provisions in the planning permission itself, to treat the operation as single one, and I test it for myself in this way. The purpose of all town and country planning is to preserve amenities and the sensible and attractive lay-out of properties, and if the appellants are right in this case and the grant of a permission of this kind is really the grant of multiple permissions to install brick by brick it would mean that an eccentric land developer could produce most extraordinary results on his land, results which might perfectly well redound to the disadvantage of others, without in any way falling foul of this legislation; he could leave holes in the walls of his house; he could leave half the roof off; he could do all sorts of eccentric things of that kind, and when he was tackled about it by the planning authority he would say: ‘But every brick is in accordance with the plans; at no point have I done anything which the plans did not authorise.’ If it were asked: ‘What about the all the vacant spaces which the plans intended to be filled?’ the answer would be: ‘There is no breach of planning control there. There is nothing done there and if you do nothing you cannot be wrong.’”
Although one may have sympathy for the authority in that case, the legal analysis is with respect clearly correct. In the same way in this case the assumed permission is for the construction of the road, not for a series of discrete operations involved in that process.
“Where the value of land is increased by reason of the use thereof or of any premises thereon in a manner which could be restrained by any Court, or is contrary to law … the amount of that increase shall not be taken into account.”
In reliance on that rule the Tribunal said:-
“Extraction of the stone other than for the purposes of road building would have been unlawful, and so any increase in value that might arise from such use must be left out of account.” (para 176)
Mr Nardecchia countered that by relying on the distinction between operations and uses made in the definition of development for the purposes of the Town and Country Planning Act (see 1990 Act s 55); this definition of “development” is also adopted by section 39 (1) of the Land Compensation Act.